JOHN K ABRAHAM Vs SIMON C ABRAHAM
Bench: SURINDER SINGH NIJJAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-002043-002043 / 2013
Diary number: 15706 / 2011
Advocates: KEDAR NATH TRIPATHY Vs
JOGY SCARIA
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2043 OF 2013 (@ SLP (CRL.) No.9505 of 2011)
John K. Abraham …. Appellant
VERSUS
Simon C. Abraham & Another …. Respondents
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the judgment of the High
Court of Kerala at Ernakulam dated 15th December, 2010
passed in Criminal Appeal No.452 of 2004.
3. The issue involved in this appeal arises under Section 138 of
the Negotiable Instruments Act. The complaint was
preferred by the respondent No.1 before the Chief Judicial
Magistrate, Pathanamthitta alleging that appellant borrowed
a sum of Rs.1,50,000/- from him and issued a cheque for the
said sum on 20.06.2001 drawn on Indian Overseas Bank,
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Plankamon branch in discharge of the debt. It is the further
case of the respondent--complainant that when the cheque
was presented for encashment through Pathanamthitta
District Co-operative Bank, Kozhencherry branch, the same
was returned by the bankers with the endorsement
‘insufficient funds in the account of the accused’. The
respondent-complainant stated to have issued a lawyer’s
notice on 14.07.2001, which was received by the appellant
on 16.07.2001, but yet there was no reply from the
appellant. Based on the above averments alleged in the
complaint, the case was tried by the learned Chief Judicial
Magistrate.
4. The respondent herein was examined as PW.1 and Exhibits
P-1 to P-6 were marked. None was examined on the side of
the appellant. In the questioning of the appellant made
under Section 313 of Cr.P.C., the appellant took the stand
that his son took the cheque from him and that if at all
anything was to be recovered, it had to be made from the
son of the appellant, since the appellant had not borrowed
any money.
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5. The learned Chief Judicial Magistrate after considering the
oral and documentary evidence led on behalf of the
respondent-complainant, held that the respondent-
complainant was making a prevaricating statement as
regards the issuance of the cheque, that he was not even
aware of the date when the amount was said to have been
borrowed by the appellant, that there was material
alteration in the instrument and, therefore, the respondent
failed to establish a case under Section 138 of the
Negotiable Instruments Act. Consequently, the learned Chief
Judicial Magistrate found the appellant not guilty and
acquitted him under Section 255(1) of Cr.P.C. The
respondent preferred the appeal in the High Court of Kerala
at Ernakulam and by the impugned order the High Court
reversed the judgment of the learned Chief Judicial
Magistrate, convicted the appellant and imposed the
sentence to pay a fine of Rs.1,50,000/- as compensation
under Section 357(1) of Cr.P.C. In default of making the
payment of the fine amount, the appellant was directed to
suffer simple imprisonment for a period of three months.
6. We heard Mr. Romy Chacko, learned counsel for the
appellant and Mr. Jogy Scaria, learned counsel for the 2nd CRIMINAL APPEAL NO. OF 2013 (@ SLP (CRL.) No.9505 of 2011) 3 of 9
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respondent. We also perused the material papers placed
before us, including the judgment of the trial Court as well
as the High Court. Having considered the above, we are of
the view that the High Court was in error in having reversed
the judgment of the trial Court.
7. When we examine the case of the respondent-complainant
as projected before the learned Chief Judicial Magistrate and
the material evidence placed before the trial Court, we find
that the trial Court had noted certain vital defects in the
case of the respondent-complainant. Such defects noted by
the learned Chief Judicial Magistrate were as under:
(a) Though the respondent as PW-1 deposed that the
accused received the money at his house also
stated that he did not remember the date when the
said sum of Rs.1,50,000/- was paid to him.
(b) As regards the source for advancing the sum of
Rs.1,50,000/-, the respondent claimed that the
same was from and out of the sale consideration of
his share in the family property, apart from a sum of
Rs.50,000/-, which he availed by way of loan from
the co-operative society of the college where he was
employed. Though the respondent stated before the
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Court below that he would be in a position to
produce the documents in support of the said stand,
it was noted that no documents were placed before
the Court below.
(c) In the course of cross-examination, the respondent
stated that the cheque was signed on the date when
the payment was made, nevertheless he stated that
he was not aware of the date when he paid the sum
of Rs.1,50,000/-.
(d) According to the respondent, the cheque was in the
handwriting of the accused himself and the very
next moment he made a contradictory statement
that the cheque was not in the handwriting of the
appellant and that he (complainant) wrote the
same.
(e) The respondent also stated that the amount in
words was written by him.
(f) The trial Court has also noted that it was not the
case of the respondent that the writing in the
cheque and filling up of the figures were with the
consent of the accused appellant.
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8. In light of the above evidence, which was lacking in very
many material particulars, apart from the contradictions
therein, the trial Court held that the appellant was not guilty
of the offence alleged against under Section 138 of the
Negotiable Instruments Act and acquitted him.
9. Keeping the above factors in mind, when we examine the
judgment impugned in this appeal, we find that the High
Court committed a serious illegality in reversing the
judgment of learned Chief Judicial Magistrate. While
reversing the judgment of the trial Court, what weighed with
the learned Judge of the High Court was that in the 313
questioning, it was not the case of the appellant that a blank
signed cheque was handed over to his son and that even in
the cross-examination it was not suggested to PW-1 that a
blank cheque was issued. The High Court was also
persuaded by the fact that the appellant failed to send any
reply to the lawyer’s notice, issued by the respondent.
Based on the above conclusions, the High Court held that
the presumption under Sections 118 and 139 of the
Negotiable Instruments Act could be easily drawn and that
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the appellant failed to rebut the said presumption. On that
single factor, the learned Judge of the High Court reversed
the judgment of the trial Judge and convicted the appellant.
It has to be stated that in order to draw the presumption
under Section 118 read along with 139 of the Negotiable
Instruments Act, the burden was heavily upon the
complainant to have shown that he had required funds for
having advanced the money to the accused; that the
issuance of the cheque in support of the said payment
advanced was true and that the accused was bound to make
the payment as had been agreed while issuing the cheque in
favour of the complainant.
10. Keeping the said statutory requirements in mind, when we
examine the facts as admitted by the respondent-
complainant, as rightly concluded by the learned trial Judge,
the respondent was not even aware of the date when
substantial amount of Rs.1,50,000/- was advanced by him to
the appellant, that he was not sure as to who wrote the
cheque, that he was not even aware when exactly and
where exactly the transaction took place for which the
cheque came to be issued by the appellant. Apart from the
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said serious lacuna in the evidence of the complainant, he
further admitted as PW.1 by stating once in the course of
the cross-examination that the cheque was in the
handwriting of the accused and the very next moment
taking a diametrically opposite stand that it is not in the
handwriting of the accused and that it was written by the
complainant himself, by further reiterating that the amount
in words was written by him. We find that the various
defects in the evidence of respondent, as noted by the trial
Court, which we have set out in paragraph 7 of the
judgment, were simply brushed aside by the High Court
without assigning any valid reason. Such a serious lacuna in
the evidence of the complainant, which strikes at the root of
a complaint under Section 138, having been noted by the
learned trial Judge, which factor was failed to be examined
by the High Court while reversing the judgment of the trial
Court, in our considered opinion would vitiate the ultimate
conclusion reached by it. In effect, the conclusion of the
learned Judge of the High Court would amount to a perverse
one and, therefore, the said judgment of the High Court
cannot be sustained.
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11. Having regard to our above conclusion, this appeal stands
allowed. The order impugned is set-aside, the conviction and
sentence imposed on the appellant is also set aside.
………….……….…………………………..J. [Surinder Singh Nijjar]
...……….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; December 05, 2013.
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